Traynor's Will, In re

• Decision Date: 08 February 1962
• Citation: 226 N.Y.S.2d 304,34 Misc.2d 399
• Parties: In re TRAYNOR'S WILL. Petition of Harriet C. BICKERTON, as Administratrix c. t. a. of the goods, chattels and credits of Anne R. Traynor (a/k/a Annie R. Traynor), Deceased, for a construction of the Last Will and Testament of said Decedent. Surrogate's Court, Richmond County
• Court: New York Surrogate Court

Page 304

226 N.Y.S.2d 304

34 Misc.2d 399

In re TRAYNOR'S WILL.

Petition of Harriet C. BICKERTON, as Administratrix c. t. a.

of the goods, chattels and credits of Anne R. Traynor (a/k/a

Annie R. Traynor), Deceased, for a construction of the Last

Will and Testament of said Decedent.

Surrogate's Court, Richmond County.

Feb. 8, 1962.

Edmund J. Murphy and Charles A. Nolan, Staten Island, for administratrix c. t. a., Harriet C. Bickerton.

David R. J. Arnold, New York City, special guardian for Denis Hornbuckle, infant over the age of 14 years.

FRANK D. PAULO, Surrogate.

The Petitioner, Harriet C. Bickerton, Administratrix, with the Will annexed, brings on this proceeding to construe the Will of Anna R. Traynor, a/k/a Annie R. Traynor, Deceased.

The Decedent, Mrs. Traynor, at the time of her death was 89 years of age. The facts indicate that she executed her Will eight days before her death. The testamentary instrument is written in longhand on a printed form. The Decedent left her surviving Katherine Hornbuckle (designated in the Will as Catherine Frances Hornbuckle), her daughter; Harriet C. Bickerton (designated in the will as Harriett C. Bickerton), a daughter; Eugene O'Neill, a son; and two children of another son who predeceased the testatrix.

The pertinent provisions of the Will which require construction are Paragraphs Numbered 'Second' and the subparagraphs thereunder, which read in part as follows:

'Second:--I give, devise and bequeath to Mrs. Catherine Frances Hornbuckle and Mrs. Harriett C. Bickerton my interest in property on the corner of Prince and Mercer Street in New York City jointly.

'In case Mrs. Bickerton dies first, her interest will revert to Mrs. Hornbuckle.

'In case Mrs. Hornbuckle dies first her interest in said property will revert to her three children to share jointly.'

It is the opinion of the Court that the first paragraph of Paragraph 'Second' of the Will indicates an intent on the part of the Testatrix to devise her interest in said premises to her two named daughters equally in fee as tenants in common. The second and third subparagraphs of Paragraph 'Second' are construed by the Court as a void attempt by the Testatrix to impose limitations on the fee given in the first paragraph to her two daughters. See: Banzer v. Banzer, 156 N.Y. 429, 51 N.E. 291; Trask v. Sturges, 170 N.Y. 482, 63 N.E. 534.

The conditions expressed in the second and third subparagraphs of Paragraph 'Second', that is 'In case Mrs. Bickerton dies first * * *' and 'In case Mrs. Hornbuckle dies first * * *', were not intended by the Testatrix as imposing a condition that the daughters named in the Will or either of them, survive the Testatrix. When we...